ADJ10984573 · May 7, 2021

The Appeals Board found that the QME's reports were not substantial evidence and that a replacement panel was not mandated by law, but the WCJ improperly ordered a new panel without proper notice and opportunity to be heard.

From the decision · page 1Applicant seeks removal of the Findings and Order Re Second QME Panel (Represented Case) and Opinion on Decision (F&O) issued by the workers' compensation administrative law judge (WCJ) on February 23, 2021. By the F&O, the WCJ found that the medical record requires further development and cannot be developed with the existing panel qualified medical evaluator (QME). She further found that a new panel should issue in the specialty of pulmonary disease and ordered the Medical Unit to issue a panel in this specialty.

The WCJ found the medical record required further development and that Dr. Cole's supplemental report and deposition would not suffice.

Favours Applicant prevailed

This justified the need for further proceedings but did not mandate replacement of Dr. Cole as QME.

From the decision · page 3further development of the record to determine applicant's diagnosis and causation of injury and a supplemental report or the deposition testimony of panel QME, Dr. Sophie Cole, will not sufficiently develop the record." (F&O, February 23, 2021, p. 1.) The F&O included a finding that "[a] new QME panel should issued [sic] in the specialty of MMP-pulmonary disease." (Id. at p. 2.) An order for a new panel in the specialty of pulmonary disease was issued.

The F&O improperly ordered a new QME panel in another specialty without notice or opportunity to be heard.

Favours Applicant prevailed

This procedural error led to the rescission of the F&O and return for further proceedings.

From the decision · page 5Whether a new QME panel in another specialty is warranted was not one of the issues identified for adjudication at trial. All parties to a workers' compensation proceeding retain the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) Due process requires, in relevant part, that a party receive notice and an opportunity to be heard before an action adverse to its interest is taken. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd. (Pinkney) (1994) 26 Cal.App.4th 789 [59 Cal.Comp.Cases 461]; Fortich v. Workers' Comp. Appeals Bd. (1991) 233 Cal.App.3d 1449 [56 Cal.Comp.Cases 537].)

Diagnosed applicant with accelerated silicosis and attributed it to industrial exposure to cement dust.

Her medical opinions were challenged as not substantial evidence and her supplemental report was alleged untimely, but the Appeals Board found no mandate to replace her solely on these grounds.

From the decision · page 2Sophie Cole, M.D. evaluated applicant as the internal medicine QME. Dr. Cole issued several reports and was deposed. (Applicant's Exhibits Nos. 1-9.) She diagnosed applicant with accelerated silicosis and attributed this condition to industrial exposure to cement dust. (Applicant's Exhibit No. 7, QME Report by Dr. Sophie Cole, December 16, 2019, pp. 2-3.)

Lab. Code, §§ 5903, 5952(d); Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162

Decisions by the Appeals Board must be supported by substantial evidence, including medical opinions framed in terms of reasonable medical probability and based on adequate examination and history.

Applied to evaluate the sufficiency of Dr. Cole's medical opinions as substantial evidence.

From the decision · page 4It is well established that decisions by the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)

Cal. Code Regs., tit. 8, § 31.5(a)

Administrative Director Rule 31.5(a) enumerates specific circumstances for replacement QME panels; lack of substantial evidence is not one of them.

Applied to reject replacement panel request based solely on insufficiency of medical evidence.

From the decision · page 4Administrative Director (AD) Rule 31.5(a) enumerates 16 circumstances under which a party may request a replacement QME panel. (Cal. Code Regs., tit. 8, § 31.5(a).) Despite the evidentiary requirement that decisions by the Appeals Board be supported by substantial evidence, this is not one of the enumerated reasons for a replacement QME panel pursuant to Rule 31.5(a). Consequently, Rule 31.5(a) does not provide authority for a replacement QME panel on the grounds that the QME's reports are not substantial evidence.

Lab. Code, §§ 5701, 5906; McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138; Cal. Code Regs., tit. 8, §§ 31.7(a), 31.7(b)(3)

The WCJ and Board have authority to develop the medical record if specific medical opinions are deficient, and may order additional QME panels in other specialties upon good cause.

Applied to allow further development of the record or additional QME panels with proper notice and opportunity to be heard.

From the decision · page 5The Appeals Board has the discretionary authority to develop the record when the medical record is not substantial evidence to determine causation of a disputed body part. (See Lab. Code, § 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117 [63 Cal.Comp.Cases 261].) Accordingly, upon return of this matter to the trial level, the WCJ may exercise her authority to develop the record if necessary to adjudicate the disputed issues between the parties. In our en banc decision in McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) 67 Cal.Comp.Cases 138 (Appeals Board en banc), we stated that "[s]ections 5701 and 5906 authorize the WCJ and the Board to obtain additional evidence, including medical

The medical record was found deficient and requiring further development to determine diagnosis and causation.

From the decision · page 3further development of the record to determine applicant's diagnosis and causation of injury and a supplemental report or the deposition testimony of panel QME, Dr. Sophie Cole, will not sufficiently develop the record." (F&O, February 23, 2021, p. 1.) The F&O included a finding that "[a] new QME panel should issued [sic] in the specialty of MMP-pulmonary disease." (Id. at p. 2.) An order for a new panel in the specialty of pulmonary disease was issued.